IDEA Complaint Decision 06-008

On February 13, 2006, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Unnamed School District. This is the department's decision regarding that complaint. The issues are whether the district, during the 2005-2006 school year, properly developed an individualized education program (IEP) and placement for a student with a disability and ensured that the student received required special education services.

The 2004-2005 school year was one of this student's best years, according to both district staff and to the parents. Behavioral needs remained, but significant improvement was evident as compared with previous years and the student progressed toward meeting other IEP goals. The parents and district staff knew that the coming year would present challenges for the student due to several important changes, including both regular and special education teachers. During spring 2005 the student made several visits to the new classroom and met new staff and students. The student received services for several weeks during the summer. The progress noted during the 2004-2005 school year did not continue into the summer and behavior incidents increased. The parents did not become aware of the extent of the increase in behavior incidents during the summer placement until several weeks into the 2005-2006 school year.

The behavior incidents continued during the first week of the 2005-2006 school year. As a result, a district program support specialist was consulted and became more directly involved with the student's programming during the second week of school. Staff began charting the student’s behavior incidents and the program support specialist was called in frequently to address the student’s behavior when other staff were unable to address it successfully. Despite the assistance of the specialist, the student continued to have many behavior incidents, which also were increasing in intensity. On September 21 the student kicked his special education teacher in the abdomen. The teacher was taken to a hospital by ambulance and was not able to return to work for several weeks.

The district convened an IEP team meeting September 29. The parent attended. Between the September 21 incident and the meeting the district determined that it was prepared to place the student in an interim alternative educational setting (IAES), believing that the incident resulted in serious bodily injury as defined in the Individuals with Disabilities Education Act 2004. Due to the unique circumstances of the incident on September 21, the department concludes that the district had sufficient basis for concluding that the student inflicted serious bodily injury upon another person while at school and that the district could make an IAES placement. However, the district approached the meeting in the hope the parent, and other IEP team participants, would agree to the out-of-district placement being considered by the district as a short-term placement and that making an IAES placement would not be necessary.

During the meeting the district proposed placing the student in a program operated by a nearby district. Other placement options also were discussed. Only students with disabilities attend the program in the nearby district and the students are several years older than this student. Because the student previously had been fully integrated with students who do not have disabilities and because the student would be the youngest student attending the proposed placement, the parent expressed reservation about the placement. However, as a result of continued discussion the parent ultimately agreed to the placement and the meeting concluded. The district provided the parent with a placement notice identifying the nearby district program as the student’s placement, which was to begin just over a week later.

The parent visited the proposed placement several days later with the district program support specialist. Prior to the proposed IEP implementation date, the parents informed the district that they would not send their child to the new program. Shortly after that the parents filed a due process hearing request with the department challenging the district's proposed placement. In early November 2005 the parents and district unsuccessfully attempted to resolve the dispute in mediation. The district developed a new self-contained program for the student and several other students with disabilities in a school within the district. The parents agreed to the placement in late January 2006, though at the time they intended to proceed with the hearing process. The student began attending the new placement. In mid-February the parents filed this complaint and withdrew their hearing request.

Between September 21 and September 29 the student received services on a reduced schedule in a small room near the district central offices. The student did not have contact with any other students. Several days after the IEP team meeting on the 29th the parents notified the district that they would not agree to, and would not send their child to, the placement proposed by the district. They also indicated that they did not want their child to receive services in the small room used several days in September. Between early October 2005 and late January 2006, the student received only a limited number of hours of related services provided by the district. The student did receive services arranged by the parent, but they were not home-based private education services or private school services. The district chose not to follow state truancy requirements given the circumstances of this situation even though the student is of compulsory school attendance age. Consequently, the program and placement offered by the district on September 29, 2005, never was implemented and the student received limited services from the district between October 2005 and late January 2006. The district did not ensure that the student received required special education services during this time period. The district is directed to conduct an IEP team meeting within 30 days of receiving this decision to determine whether the student needs additional services due to the interval when services were not provided. The district will report the results of the meeting to the department no later than 15 days after the meeting occurs.

The IEP team which met on September 29 completed a functional behavioral assessment based on information developed primarily during the previous weeks. The team then developed a behavior intervention plan. The IEP includes almost six pages of present levels of performance based on detailed information provided by the student’s previous and current regular education teachers, the student's educational assistant, the program support specialist and several other staff. The IEP includes a chart tracking eight behaviors of concern across 10 school days. The IEP has five goals relating to needs described in the present levels of performance. The IEP describes special education, related services, supplementary aids and services, and program modifications and supports for school personnel to be provided to the student. The IEP includes positive behavioral interventions, strategies and supports to address student behavior interfering with learning, and a behavior plan designed to prevent the behavior which led to use of an IAES from recurring. These services relate to the student’s needs identified in the IEP. The district developed an IEP for the student which is reasonably supported by student-specific data and provides services to address the student’s educational needs.

With one exception, the district followed procedures required when a student is placed in an IAES. The IEP team conducted a functional behavioral assessment and developed a behavior intervention plan. The IEP team developed an IEP and determined the setting where the program would be implemented. Further, the IEP team did conclude that the conduct on September 21 which lead to an IAES placement was caused by, or had a direct and substantial relationship to, the child's disability and, consequently, was a manifestation of the child's disability. However, the district did not properly document this determination. The student has since been returned to a placement in a school within the district. No child-specific corrective action is required. The district has taken steps to ensure that IEP teams properly document manifestation determinations. No additional corrective action is required.

The IEP team also developed a placement on September 29. Although the parent who attended the meeting initially agreed to the placement, several days later the parents rejected it. Consequently, the district made the placement as an IAES. District administration concluded services available in the district would not offer staff, the student, and other students a safe learning environment. The IEP team concluded that the program offered in the nearby district could meet the student’s needs and provide the program the team developed and that an appropriate program was not available within the district. The team considered the parent’s concern about the student’s age compared to other student’s attending the program. The team concluded the program would be appropriate. The IEP team made an individualized placement decision.